Citation NR: 9711643
Decision Date: 04/03/97 Archive Date: 04/14/97
DOCKET NO. 95-08 845 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUES
1. Entitlement to service connection for chondromalacia,
left knee.
2. Entitlement to service connection for chondromalacia,
right knee.
3. Entitlement to service connection for chronic left ankle
sprain.
4. Entitlement to service connection for chronic right ankle
sprain.
5. Entitlement to service connection for a left leg
disability.
6. Entitlement to service connection for a right leg
disability.
7. Entitlement to service connection for leishmaniasis.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Kerry J. Loring, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1974 to May 1977
and from August 1984 to July 1992.
This matter arises from a March 1993 rating decision from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cleveland, Ohio, which denied the benefits sought on appeal.
The case has been referred to the Board of Veteransí Appeals
(Board) for resolution. The Board notes that during the
pendency of the appeal the veteran was granted service
connection for hypertension and lumbosacral strain. As the
veteran was awarded the full grant of the benefit he sought
on appeal as to those two claims, they are no longer before
the Board for appellate review. 38 U.S.C.A. ß 7104(a) (West
Supp. 1996).
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that he has pain in his knees, ankles
and legs as a result of his military service; that he was
diagnosed as having leishmaniasis during service; and that he
is therefore he is entitled to service connection.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
ß 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has failed to
submit evidence of well-grounded claims for service
connection for chondromalacia of both knees, chronic strain
of both ankles, left leg disability, right leg disability,
and leishmaniasis.
FINDING OF FACT
The claims of entitlement to service connection for
chondromalacia of both knees, chronic strain of both ankles,
left leg disability, right leg disability, and leishmaniasis,
are not supported by cognizable evidence showing that the
claims are plausible or capable of substantiation.
CONCLUSION OF LAW
The claims of entitlement to service connection for
chondromalacia of both knees, chronic strain of both ankles,
left leg disability, right leg disability, and leishmaniasis
are not well grounded. 38 U.S.C.A. ß 5107 (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
The veteranís service medical records reflect that he was
treated for a heat rash in September 1974 and a penile rash
in November 1975, with no other record of skin disorder
during service. Service medical records also reflect that
the veteran complained of overnight swelling of his left foot
in December 1974 but the medial officer found no evidence of
swelling or pathology.
In March 1975, the veteran reported sustaining an injury to
the left knee while running. Physical examination revealed
tenderness over the lateral meniscus. The medical officer
noted that if pain continued, he would question a torn
meniscus. Records reveal that three days later the veteran
reported no continued discomfort involving his left knee.
Service records from March 1976 note an injury to the left
foot and ankle while playing ball. There was swelling noted
below the ankle and over the 4th and 5th metatarsal with
normal range of motion. An x-ray revealed no evidence of
fracture but another physical examination revealed mild
swelling over the anterior talofibular ligament. The
diagnosis was sprain, left ankle, anterior talofibular
ligament.
The veteranís April 1977 medical history prior to separation
did not report any problems with knees, ankles or skin.
In his June 1984 report of medical history, prior to re-
enlistment, the veteran reported a right ankle sprain in
1978, that was ďhealed up.Ē Physical examination in June
1984 revealed normal skin, and normal lower extremities.
In September 1984, service medical records show that the
veteran reported with complaints of pain in both knees and no
history of trauma. He continued to report pain for
approximately four weeks with no evidence of redness or
swelling. The diagnosis was early MTP stress.
In April 1985, the veteran reported a left ankle injury.
There is no record of treatment or diagnosis.
An April 1992 service medical record reflects that the
veteran reported with a lesion on his upper lip. The
diagnosis was irritation secondary to shaving.
The veteranís June 1992 report of medical evaluation prior to
separation noted a history of recurrent ankle and knee pain
after long runs with no history of trauma. Clinical
evaluation of the lower extremities revealed normal findings.
The skin was notable for a well healed scar at the chest
wall.
In September 1992, the veteran was afforded a VA examination.
He reported complaints of a skin rash in his groin and
axillary area. He also reported having pain in his knees
during service which had mostly subsided, and pain in his
ankles which was related to running and other military
activities. He reported no symptoms of leishmaniasis.
Examination of the veteranís knees revealed a full range of
motion and no evidence of instability or atrophy with minimal
crepitus bilaterally. Examination of both ankles disclosed
no present abnormalities and no swelling. On the left side
was reported slight ligamentous relaxation. The diagnoses
were minimal chondromalacia of both knees, and chronic sprain
of both ankles, with no significant ligamentous problem.
VA outpatient treatment notes covering the period September
1992 to March 1994 reveal diagnoses of folliculitis and
ichthyosis vulgaris with respect to the veteranís skin.
There were no complaints, clinical findings or diagnoses
regarding his knees, legs, or ankles.
In June 1994, the veteran was afforded a local hearing. He
testified that the pain in his knees started in 1984 with
soreness, mild swelling and difficulty walking. He stated
that the symptoms were still present on occasion and that
they were sometimes mild and sometimes very painful. He
reported no treatment for his knees and stated that doctors
he had consulted told him not to worry about it.
He testified that he had no recurrent sprains in his ankles
but that they were sore in the morning and sometimes swollen.
He was not receiving any current treatment for his ankles.
With respect to his legs, the veteran reported that he was
constantly walking, standing, running and jumping while in
the military which caused his leg muscles to hurt. He stated
that he had soreness and swelling after a considerable amount
of exercise. He also reported pain down the sides of both
legs.
The veteran testified that he could not remember whether he
had been told that he had leishmaniasis but that he did have
some kind of skin condition. He stated that he had burning
in his underarms currently with no blisters.
The veteran was seen for a VA examination in November 1994.
That examination resulted in a diagnosis that the veteran
showed no signs of cutaneous licheniasis.
Analysis
The threshold issue is whether the veteran has presented
well-grounded claims for service connection. In this regard,
the veteran has ďthe burden of submitting evidence sufficient
to justify a belief by a fair and impartial individual that
the claims are well grounded.Ē 38 U.S.C.A. ß 5107(a);
Grivois v. Brown, 6 Vet.App. 136, 140 (1994), Murphy v.
Derwinski, 1 Vet.App. 78, 81 (1990).
The veteran must satisfy three elements for a claim to be
well grounded. Initially, there must be competent (i.e.
medical) evidence of a current disability. Brammer v.
Derwinski, 3 Vet.App. 223, 225 (1992); Rabideau v. Derwinski,
2 Vet.App. 141, 144 (1992). Secondly there must be evidence
of an incurrence or aggravation of a disease or injury in
service, as shown through lay or medical evidence. Layno v.
Brown, 6 Vet.App. 465, 469 (1994). Finally, there must be
evidence of a nexus between the in-service injury or disease
and the current disability, as shown through medical
evidence. Lathan v. Brown, 7 Vet.App. 359, 365 (1995).
In the instant case, the veteran has a current diagnosis of
mild chondromalacia, both knees, and chronic ankle sprain,
both ankles, without significant ligamentous problem based
upon his VA examination. However, there is no competent
medical evidence linking either of those conditions to
military service. The veteranís service medical records
indicate a left ankle injury in March 1976 and April 1985
with no continuity of treatment between the injuries, and no
indication that either injury was other than resolved during
service. The service medical records also reflect a knee
injury in March 1975 and no further complaints or treatment
involving the knees until September 1984. After a four week
profile for bilateral knee pain in 1984 and a diagnosis of
early MTP stress, there is no further evidence of knee
problems during service. The veteranís separation
examination of June 1992 found no clinical abnormalities
involving the knees or ankles notwithstanding the appellantís
reported history of recurrent ankle and knee pain after long
runs without specific trauma.
It is evident that in each instance above, the VA examinerís
diagnosis is based upon the veteranís report of history. The
law is clearly settled that an examinerís report or
transcription of a veteranís lay history, is not, by itís
mere transcription, transformed to competent medical
evidence. LeShore v. Brown 8 Vet.App. 406, 409 (1995).
Here, the examinerís diagnosis, without the requisite link to
military service, is not a basis for a well-grounded claim.
The examiner draws no conclusion as to the etiology of the
diagnosed conditions and the competent evidence of record
does not demonstrate any nexus between the diagnoses and any
incident of service. The veteranís statement that his knees
have bothered him since 1984 does not suffice to show that he
had chondromalacia or any other chronic disability during
service. As a layperson, he is competent only to testify
about his symptoms, not to offer a medical diagnosis or
opinion regarding his condition. Espiritu v. Derwinski, 2
Vet.App. 492 (1992).
With respect to the veteranís claim for service connection of
chronic sprained ankles, the Board notes that he testified
during his hearing that he does not currently experience any
chronic sprains involving his ankles. While the service
medical records show two ankle injuries, nearly ten years
apart, with the latter being seven years before separation
from service, there is no medical evidence that the
conditions continued after the initial treatment. Most
importantly, as previously noted there is no competent
evidence linking any current ankle disorder to the veteranís
active duty service.
With respect to the veteranís claims for service connection
of right leg and left leg disabilities and leishmaniasis, the
service medical records and the post service medical records
are completely devoid of any clinical findings, abnormalities
or diagnoses of disability involving the legs and there is no
medical evidence of any treatment or diagnosis of
leishmaniasis.
Accordingly, the Board finds that there is no competent
medical evidence of a chronic disability involving the knees,
ankles or legs that is related to military service, and no
evidence of a diagnosis of leishmaniasis that is in any way
related to military service. The Board, therefore, concludes
that the veteran has failed to fulfill his statutory burden
of presenting claims that are well grounded. Hence, the
benefits sought on appeal must be denied.
Although the Board considered and denied this appeal on a
ground different from that of the RO, the appellant has not
been prejudiced by the decision. This is because in assuming
that the claims were well grounded, the RO accorded the
claimant greater consideration than his claim in fact
warranted under the circumstances. Bernard v. Brown, 4
Vet.App. 384, 392-94 (1993). To remand this case to the RO
for consideration of the issue of whether the appellant's
claims are well grounded would be pointless and, in light of
the law cited above, would not result in a determination
favorable to him. VAOPGCPREC 16-92 (O.G.C. Prec. 16-92); 57
Fed.Reg. 49,747 (1992).
As the foregoing discussion explains to the veteran that a
well-grounded claim requires competent evidence showing that
he has a current disability that is related military service,
the Board views its discussion as sufficient to inform him of
the elements necessary to complete his application for a
claim for service connection.
Robinette v. Brown, 8 Vet.App. 69 (1995).
Finally, the Board considered the doctrine of reasonable
doubt. However, as the veteran's claims do not cross the
threshold of being well grounded, a weighing of the merits of
the claims is not warranted, and the reasonable doubt
doctrine is not for application. Gilbert v. Derwinski, 1
Vet.App. 49 (1990).
ORDER
Well-grounded claims having not been submitted to establish
entitlement to service connection for chondromalacia, left
knee; chondromalacia, right knee; chronic left ankle sprain;
chronic right ankle sprain; left leg disability; right leg
disability; and leishmaniasis, the appeal is denied.
DEREK R. BROWN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, ß 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. ß 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, ß 402, 102 Stat. 4105, 4122 (1988). The date
which appears on the face of this decision constitutes the
date of mailing and the copy of this decision which you have
received is your notice of the action taken on your appeal by
the Board of Veterans' Appeals.
Service connection is in effect for a right anterior chest wall scar.
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